It is not only employees who have the right to claim discrimination: Applicants for employment can also be discriminated against. Employers must therefore ensure that any recruitment process is not discriminatory.

A recent case of Government Legal Service –v- Brookes considered a recruitment process to the Government Legal Service (GLS).  Applicants to that service are required to sit a psychometric test known as the Situational Judgement Test (SJT).  The claimant contacted the GLS in advance and informed them that she was likely to find the multiple-choice format of the SJT particularly difficult because of her Asperger’s Syndrome. She suggested adjustments that could be made, but was informed that an alternative test was not available, but that she would be entitled to additional time at a later stage.  As a result she completed the SJT and narrowly missed the pass mark and so did not proceed to the next stage of the recruitment process.

The individual claimed indirect disability discrimination, discrimination arising from a disability, and a failure by GLS to make reasonable adjustments and was successful in the employment tribunal.

The first ground of appeal to the EAT related to the indirect discrimination claim. To prove indirect discrimination the claimant needed to show that the “provision, criterion or practice” (PCP) (i.e. the requirement that all applicants pass the SJT) put a group of individuals who had Asperger’s Syndrome at a disadvantage compared to those who did not have the syndrome. It was also necessary to show that the claimant herself was at such a disadvantage and it was this part of the tribunal’s decision that was appealed.

The EAT held that the employment tribunal had been entitled to conclude (from medical evidence and an assessment of the claimants background and experience) that the PCP placed the claimant herself at a disadvantage. No alternative theory had been put forward by GLS as to why she had failed to achieve the pass mark and therefore it was possible for the tribunal to conclude, on a balance of probabilities, that it was as a result of the format of the test.

The second ground of appeal was whether the requirement to sit the SJT in the form of multiple choice questions was unjustified both for the indirect discrimination claim and also in determining the reasonable adjustments that the employer should make.

The EAT held that it was not possible to justify the process as being a proportionate means of achieving a legitimate aim. Whilst the EAT acknowledged that it was necessary for the GLS to test an applicant’s competency, this was not the only means of doing so as an alternative form of assessment (namely short narrative responses) was available. The argument in respect of the reasonable adjustments was similar; given the scale and duration of the recruitment process and the resources of the GLS, an alternative option could have been available.

Employers should therefore take care in establishing the testing process. Although psychometric testing is often used to provide a level playing field and to avoid human intervention or judgment, if an employer is asked to make an adjustment to the assessment process for recruitment which could be processed without affecting the validity of the test, then it should be carefully considered.

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